Page:The American Cyclopædia (1879) Volume XVI.djvu/27

 TRUSTS TSOHIBNHAUSEN 19 If the donee may at his own discretion or plea- sure execute the alleged trust or not, it is not a trust ; but it is a valid trust if he must execute the trust, although the manner of doing it is entirely at his discretion. So, too, there may be what are called "resulting" or "presump- tive trusts," which are expressed nowhere, but are implied or presumed from the assumed in- tention of the parties, or arise from the nature of the transaction ; and the statute of frauds expressly excepts these trusts from the require- ment of writing. A trustee is always at liberty to decline a trust, but he cannot take the prop- erty withoiit the trust. The best and usually the only evidence of an acceptance of the trust is some action by the trustee under it. The same person may stand in different relations ; thus he may be appointed executor and also trustee ; and he may give separate bonds with different sureties, as executor and as trustee. In such cases it is sometimes difficult to say where the duty and responsibility of executor end and those of trustee begin. The general rule is this : If the executor has specifically set apart a portion of the estate to the purpose of the trust, he will be considered as to that por- tion as having discharged his duty as executor and entered upon his duty as trustee. An im- portant doctrine of the law of trusts, familiar to English lawyers and frequently applied in English courts, is known by the name of the cy-pres doctrine. This phrase means literally u near to it ; " and this doctrine is applied when a trust is certainly created, and it is impossible to execute it precisely as the donor prescribed, and then a court of equity, from its desire to sustain the trust, will direct an exercise of it as near as possible to the original intention of the donor. By far the most frequent occasion for its application arises from the change of circumstances in ancient trusts ; as, for exam- ple, where there is an endowment for a school limited to pupils of a certain description, and there are not now any pupils of that descrip- tion. But that necessity cannot exist so fre- quently or with so much force in the United States as in England. As an undefined judi- cial power, it is open to abuse, and can scarcely be said to be recognized in the United States. Trustees are held, both in England and in this country, to a somewhat strict accounta- bility. A trustee is bound not only to guard against loss or damage to the trust property, but to see that it is made reasonably produc- tive. If he suffers it to lie idle unreasonably, when safe investments can be made, he will be charged with interest, and in some cases, as when he is guilty of gross delinquency, or if he mingles the property with his own for his own benefit in trade or otherwise, he will be charged with compound interest. He may not himself buy property which he sells as trustee, nor sell his own property and buy it as trustee ; and this rule is applied not only to all trustees, but to agents generally. An im- portant difference between private and public trustees should be mentioned. Private trus- tees are responsible on the contracts they make as trustees, unless they guard against this by express reservation; and merely calling them- selves trustees, or even saying they act as trustees, is not, generally speaking, sufficient. Thus an executor, signing a common promis- sory note as executor, is still liable on it per- sonally, although the estate be insolvent. But public trustees, or persons acting in a known official capacity, are not personally liable on the contracts they make for the state or gov- ernment, unless they make themselves so ex- pressly or by a reasonable implication, or have in their hands funds for the purpose of the contracts. It is, of course, always in the pow- er of one who deals with a public trustee or agent to ask of him his own personal liability ; and it is always in the power of that trustee to give it or withhold it. f RI'XILLO. See TRUJILLO. TRlIXTCff, Thomas, an American naval officer, born on Long Island, Feb. 15, 1755, died in Philadelphia, May 5, 1822. During the revo- lution he served in privateers as lieutenant and captain, and made valuable captures. In 1795 he received a commission as captain in the navy. On Feb. 9, 1799, in the frigate Constel- lation, 38 guns, off the island of Nevis, he cap- tured the French frigate L'Insurgente, 40 guns, which was much cut up, and lost 29 men killed and 41 wounded. The Constellation sustained but little injury, and had one man killed and three wounded. On Feb. 1, 1800, the Constel- lation engaged off Guadeloupe the French frig- ate La Vengeance of 54 guns, which escaped into Curacoa dismasted and sinking, with a loss of 50 killed and 110 wounded. The loss of the Constellation was 14 killed and 25 wound- ed. Her mainmast went by the board at the close of the action, which prevented her from pursuing. For this action congress awarded Truxtun a gold medal. In 1802 a squadron was fitted out against Tripoli, and Truxtun having declined the command because he was refused a captain for his flag ship, his declina- tion was construed into a resignation, and his name was struck from the navy list. He re- tired to Philadelphia, where in 1816-'19 he was high sheriff. He published " Remarks re- lating to Latitude and Longitude and Variation of the Compass " (1794), and a volume of ex- tracts on naval tactics (1806). TSARSKOE SELO. See TZAESKOYE SELO. TSCHIRNHACSM, Ehrenfried Walter von, count, a German mathematician, born at Kislings- wald, near Gorlitz, April 10, 1651, died there, Oct. 10, 1708. He studied at Leyden, in 1672 volunteered against France, and afterward vis- ited England, France, and Italy. After his re- turn he constructed optical instruments, and established glass factories and a mill for the polishing of burning glasses, one of which weighed 160 Ibs. and was 33 in. in diameter. He also constructed a burning mirror of high- ly polished copper, producing effects similar